Woman who sued anti-abortion
doctor over brain-damaged son loses her court fight
By Maxine Lattimer,
March 31, 1999

A woman who said a GP prevented her from aborting the pregnancy
which resulted in a brain-damaged child lost her High Court
action for damages (31/3/99). Michele Johnston, now 33,
of Corby, Northamptonshire, sued Dr Sheila Matthews over
the birth of her son Sam. He was born prematurely after
she had a major hemorrhage in April 1989 and is now suffering
from a severe form of cerebral palsy. Mrs Johnston, who
has since married, has two other children and is expecting
a fourth, was claiming the cost of raising Sam. She told
Mr Justice Alliott that the GP wrongly told her she was
too late for an abortion at 14-and-a-half weeks and that
she did not meet the legal criteria for a termination (that
the risk to the woman's mental health from continuing the
pregnancy is greater than if it was ended). When she became
pregnant through a casual relationship, Mrs Johnston was
newly-divorced, bulimic, had recently cut her wrists in
a suicide attempt and was planning to go to university.
Dr Matthews denied negligence and said she opposed termination
as part of her Christian beliefs, but did not allow this
to cloud her professional duty. She claimed that always
tried to be 'as level and non-judgmental as possible' and
appreciated that many people did not share her views. But
it was revealed that she had only ever directly referred
one patient - a 13-year-old girl - for an abortion, and
it was her normal practice to ask a patient who was determined
to have an abortion to see another doctor at the surgery.
She said it was very, very unlikely she would refer a patient
for abortion even in the case of a non-viable fetus. She
claimed that she would not have said that it was too late
for an abortion as it was not, or said that no one would
be prepared to recommend an abortion, as that was not the
case. But it was not her view that Mrs Johnston was qualified
for an abortion under the 1967 Act as in her opinion she
was of an age when she could understand and cope with the
pregnancy and was physically healthy.

The judge said that Mrs Johnston's decision to see Dr Matthews
rather than her normal male GP, on the basis that she would
feel more comfortable with a woman, was 'a choice that was
to have profound consequences.' He said 'I have no doubt
that if she had gone to see her usual GP, he would have
referred her for termination which would have been carried
out and this appalling tragedy of the hemorrhage causing
Sam's cerebral palsy would have been avoided'. But from
the evidence, he was satisfied that Mrs Johnston and her
then boyfriend did receive counselling about private abortion
from a health visitor after their second consultation with
Dr Matthews. However, the couple did not take that opportunity
and had undergone a 'change of heart' by the time of the
third consultation five days later. The judge said that
it followed that Dr Matthews did not represent things in
such a way as to prevent Mrs Johnston obtaining a termination,
and he rejected Mrs Johnston's evidence that the GP said
it was too late for a termination and that it was not a
viable option.

But the judge did say that there remained an anxiety that
Dr Matthews's opinion that Mrs Johnston did not meet the
criteria for an abortion might have been coloured by her
moral and religious views. It was apparent, he said, that
the medical profession was very alive to the ethical dilemmas
posed by those of the GP's persuasion. The arrangement at
her practice, whereby Dr Matthews would refer patients set
on abortion to a colleague, was a sensible way of disposing
of those dilemmas. He suggested, however, that once a termination
of pregnancy was recognised as an option, a doctor registering
a conscientious objection should refer a patient to a colleague
'at once'.

This court case reflects the one of the major failings of
the current abortion law, which is that abortion is only
legal if two doctors agree that the woman meets certain
legal criteria. Different doctors interpret the law in different
ways depending on their personal views of abortion. Some
doctors interpret the law liberally and others are much
more conservative. The 1967 Abortion Act contains a clause
that allows doctors to conscientiously object to involvement
in abortion. They then have a duty of care to refer women
requesting abortion to other colleagues. Doctors who oppose
abortion should exercise their right to opt out of abortion
advice and care - this would be more honest and helpful
to women seeking abortion who need to be seen by sympathetic
and supportive doctors.